The Trump administration is asking a federal appeals court in Washington to accept that records created in the White House belong to Donald Trump rather than the American public, in a challenge to the Presidential Records Act.
Three judges on the US Court of Appeals for the District of Columbia Circuit are due to hear arguments on Friday over the administration’s attempt to invalidate the law, which has governed the preservation of presidential papers since 1978.
The case is part of a wider effort during Mr Trump’s second term to test restrictions on executive power introduced after the Watergate scandal. It could ultimately reach the conservative-leaning Supreme Court.
Challenge to the Presidential Records Act
The Justice Department launched the legal move six months ago. Michael Edney, a conservative lawyer who has worked at the National Security Council and the Justice Department, said the law represented an excessive interference with the executive branch.
“This is a story about a post-Watergate, overbroad statutory incursion into the prerogatives of the executive branch,” Mr Edney said during a Federalist Society webinar.
For roughly two centuries, presidents were able to decide what happened to papers produced during their time in office. Congress intervened after disputes involving Richard Nixon, and every president since then has complied with the records law until this year.
White House spokeswoman Lauren Bis said: “The Presidential Records Act is unconstitutional and a clear violation of the separation of powers.”
The administration’s position follows Mr Trump’s indictment on obstruction of justice charges over allegations that he stored classified documents in areas including a bathroom, ballroom and office at his Mar-a-Lago resort. A federal judge dismissed the case on technical grounds concerning the appointment of the prosecutor, and the Justice Department later abandoned it after Mr Trump won re-election.
Concerns over access to presidential papers
The lawsuit challenging the administration’s position was brought by Citizens for Responsibility and Ethics in Washington. Nikhel Sus, the organisation’s chief counsel, said accepting the argument would remove the public’s right to access presidential papers.
“If the courts were to accept it, and we are hopeful that they will not, it would mean the people really have no right of access to the president’s papers and that would be a major loss for archivists, historians and to the American people writ large,” Mr Sus said.
Senior US District Judge John Bates, a George W Bush appointee, ruled against the Trump White House this year. His decision began with a quotation from George Orwell’s 1984: “Who controls the past controls the future; who controls the present controls the past.”
The administration has argued that retaining all presidential records places a burden on the White House and could discourage advisers from having candid discussions with the president.
Former government officials have said access to the papers is necessary for the continuity of government. John Bellinger, who served as legal adviser to the National Security Council under Mr Bush, said he and colleagues had sometimes consulted Bill Clinton’s records to understand conversations with foreign leaders and members of Congress.
“Often the only record of what a president has said to a foreign leader — or perhaps even more important, what a foreign leader, friend or foe, has said to the president of the United States — is in a written document,” Mr Bellinger said.
He said denying future administrations access to those records would leave them at a “terrible disadvantage”.
Mr Edney said Congress could probably devise a “thoughtful” statute on preserving presidential records. However, he argued that provisions giving Congress automatic access and assuming the papers would be made public were constitutionally problematic.
He also questioned whether the watchdog groups bringing the case had the legal standing to do so. But he said the administration appeared determined to pursue the dispute before the Supreme Court.
“They want this to go to the Supreme Court,” Mr Edney said. “I think they want this resolved at a time of their choosing, with arguments of their choosing, and a court of their choosing, and with the Solicitor General’s office that’s making their arguments, as opposed to a subsequent administration.”
